Software

Over recent months, software titan Microsoft Corporation has filed a number of “Doe” lawsuits in the U.S. District Court for the Western District of Washington. The suits allege both copyright and trademark claims against anonymous defendants accused of efforts to activate unlicensed copies of popular Microsoft software products.

The products named in the complaints include various versions of Windows and Office suites. The complaints further described how Microsoft uses unique “product keys” used in the installation and activation of its software by consumers:

A Microsoft product key is a 25-character alphanumeric string generated by Microsoft and provided to customers and OEMs. Generally, when customers or [Original Equipment Manufacturers] OEMs install Microsoft software on a device, they must enter a product key. Then, as part of the activation process, customers and/or OEMs voluntarily contact Microsoft’s activation servers over the Internet and transmit their product keys and other technical information about their device to the activation servers. The majority of the activations involved in this matter contacted servers that are physically located in Washington.

Using “cyberforensics,” Microsoft allegedly received and analyzed information the targeted IP addresses used in the activation of unlicensed software:

Microsoft’s cyberforensics have identified several thousand product activations originating from IP address[] (“the IP Address”), which is presently assigned to [ISP], and which, on information and belief, is being used by the Defendants in furtherance of the unlawful conduct alleged herein. A material percentage of these activations have characteristics that, on information and belief, demonstrate that Defendants are using the IP Address to activate pirated software.

The complaints go on to make claims for violations of the Copyright Act based on the unlicensed reproduction of the software products. In addition, the complaint alleges trademark infringement arising from the infringement of Microsoft’s registered trademarks and service mark, claiming that “Defendants’ activities are likely to lead the public to conclude, incorrectly, that the infringing materials that Defendants are installing originate with or are authorized by Microsoft, thereby harming Microsoft, its licensees, and the public.”

UPDATE (5/19/17): Microsoft filed another similar lawsuit on 5/12/2017.

The suits seek declaratory relief, injunctions against the Defendants, damages, attorney’s fees and costs. The actions were filed by Davis Wright Tremaine, LLP in Seattle, Washington. A case listing with links to complaints is below.

Synopses, Inc. has filed a lawsuit against several Oregon individuals, alleging infringement of various forms of electronic design automation (“EDA”) software for which Synopsys holds copyrights. The software is intended for testing and designing computer processing chips and semiconductors.

The complaint, filed in the U.S. District Court for the District of Oregon, with Case No. 3:15-cv-01953, says that:

EDA generally refers to using computers to design, verify, and simulate the performance of electronic circuits on a chip. For more than 25 years, Synopsys’ solutions have helped semiconductor manufacturers and electronics companies design, test, and manufacture microchips for a wide range of products.

Among the works claimed to be infringed are the “Design Compiler, PrimeTime, Formality, IC Compiler, CustomExplorer, HSIMplus, HSPICE, and NanoTime applications.”

The defendants include four named individuals whom are believed to be residents of Portland, Oregon, as well as 10 Doe parties. The plaintiff claims to know specifically how many times the named defendants have circumvented access control systems.

The complaint alleges violations of 17 U.S.C. § 1201 via the alleged use of counterfeit license keys. The relief sought includes statutory damages of $2,500 for each violation, injunctive relief, attorneys’ fees and costs.

The complaint, filed in the U.S. District Court for the Eastern District of Texas, Sherman Division, with Case No. 4:15-cv-00017 , says that the PLM software:

…allows companies to manage the entire lifecycle of a product efficiently and cost-effectively, from ideation, design and manufacture, through service and disposal. PLM software brings together computer-aided design (“CAD”), computer-aided manufacturing (“CAM”), computer-aided engineering (“CAE”), product data management (“PDM”) and digital manufacturing. By providing the application depth and breadth needed to digitally author, validate and manage the detailed product and process data, PLM supports innovation by its customers.

Among the works claimed to be infringed are several versions of a suite known as “NX,” as well as several versions of “SolidEdge,” which is described as “an industry-leading mechanical design system with exceptional tools for creating and managing 3D digital prototypes.”

As for the Does, they are described as being unknown aside from a related IP address. The infringing conduct is vaguely described, with the Does alleged to have used “a computer with an Internet connection to download and/or use certain of the Copyrighted Software,” without any indication whether the BitTorrent file-sharing protocol was involved.

The Siemens lawsuit is not entirely clear as to why this particular venue was selected. It is commonly presumed that a good share of the infringement of highly valuable commercial software occurs in foreign countries. Also, as a result of a number of federal court decisions over the past few years made in BitTorrent lawsuits, new filings are typically located in a district to which geolocation software has traced a suspect group of IP addresses engaged in file-sharing activity, and the courts have generally accepted that geolocation software is accurate. The Siemens complaint makes allegations regarding personal jurisdiction and venue that are fairly vague and stated “on information and belief,” with no mention of geolocation.

However, the Eastern District has been known for several years as a plaintiff-friendly hotbed for patent infringement filings, the New York Times has reported. According to another report on the District, patent infringement plaintiffs win cases there at a rate of 88%, as opposed to 68% nationwide.

On August 27, 2015, Siemens filed a second, virtually identical lawsuit against another 100 Does in the U.S. District Court for the Eastern District of Texas, Sherman Division, with Case No. 4:15-cv-00582.

UPDATE (6/13/16): Siemens filed yet another similar case against another 100 Does, this time in the U.S. District Court for the Southern District of Texas, based in Houston, with Case No. 4:16-cv-01422.

UPDATE (1/7/17): Siemens filed yet another similar case against another 100 Does in the U.S. District Court for the Southern District of Texas, with Case No. 4:16-cv-03552.

UPDATE (8/11/17): Siemens filed yet another similar case against another 93 Does in the U.S. District Court for the Southern District of Texas, with Case No. 4:17-cv-01796.

Troll Defense

About

Benjamin Justus is one of the few attorneys in the nation who has for years represented individuals, families and businesses that have been sued or threatened with suit for alleged internet-based copyright infringement by various owners of intellectual property in films, music, photographs and other works. He has assisted hundreds of parties who have been involved in such claims. His practice is expanding to include other aspects of liability arising from internet activities, including trademark infringement, defamation, and circumvention of protective technologies.